Steve
Coogan (“Coogan” or “the plaintiff”)
worked for Fidelity Management & Research, LLC
(“Fidelity”) for over 20 years before being
terminated in 2013, at the age of 55. He alleges age
discrimination and has brought suit against Fidelity and his
former supervisors, Sean Burke (“Burke”) and
Michael Luzzo (“Luzzo”) (collectively “the
defendants”) pursuant to both M.G.L. c. 151B (Counts I,
III and IV) and the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 (Count II). The
defendants move for summary judgment. (Dkt. No. 61). The
plaintiff opposes the motion. (Dkt. No. 78). After careful
consideration of the record, the parties' briefs and the
information adduced at a hearing on the motion, it is
respectfully recommended that the motion for summary judgment
be ALLOWED.

I.
RELEVANT FACTUAL BACKGROUND

The
plaintiff worked for Fidelity in various positions from 1989
until his termination in February 2013. Broadly speaking,
things went well for him from 1989 through 2010, but
proceeded precipitously downhill from 2010 to 2013.

1.
1989 to 2010

Fidelity
hired the plaintiff in 1989 to work in its Internal Document
Printing Services (“DPS”) section. (Statement of
Undisputed Facts In Support of Defendants' Motion for
Summary Judgment (“Defendants' SUF”), at
¶ 5). The plaintiff left Fidelity in 1994 but
subsequently returned to DPS in 1995 and worked there until
his termination on February 12, 2013. (Defendants' SUF,
at ¶¶ 1, 5; Coogan's Statement of Undisputed
Facts (“Plaintiff's SUF”), at ¶ 1).

The
plaintiff's responsibilities with DPS included
“most of the enterprise printing that supports
Fidelity's business units, an all-digital configuration
that produces (among other things) presentations, bound
booklets, brochures, flyers, name tags, training manuals and
posters.” (Defendants' SUF, at ¶ 4).

In
2008, when the plaintiff was 50, Fidelity promoted him to the
position of “senior manager.” (Defendants'
SUF, at ¶ 10; Plaintiff's SUF, at ¶ 2, 33). In
that role, the plaintiff managed 10-20 direct reports,
ensured that all print jobs were produced timely and
according to customer specifications, and oversaw the mail
room, quality control, and accounting for metrics and costs.
(Defendants' SUF, at ¶¶ 10, 11; Plaintiff's
SUF, at ¶ 34). Luzzo was the plaintiff's direct
supervisor; he held bi-weekly meetings with the plaintiff,
provided him with ongoing coaching, and counseled him on
opportunities for performance improvement within his role as
senior manager. (Defendants' SUF, at ¶¶ 12,
13).

From
2008 through 2010, the plaintiff received numerous positive
performance reviews, awards, and merit-based raises.
(Plaintiff's SUF, at ¶¶ 1-44). In or around
2011, though, the plaintiff began to experience difficulties.

2.
2011

In
2011, the plaintiff was awarded for the first time a
“project manager role.” (Defendants' SUF, at
¶ 17; Plaintiff's SUF, at ¶ 45). Among other
things, the plaintiff was responsible for overseeing the
successful implementation of a new software system Fidelity
had purchased. (Defendants' SUF, at ¶ 17;
Plaintiff's SUF, at ¶ 50). The software system was
scheduled to be implemented and launched in full within two
years; during that time the plaintiff and his team were
responsible for meeting various implementation-related
deadlines. (Defendants' SUF, at ¶ 20;
Plaintiff's SUF, at ¶ 52).

Unfortunately,
the plaintiff and his team failed to meet several of these
interim deadlines, which in turn set back the launch date of
the software system. (Defendants' SUF, at ¶ 22;
Plaintiff's SUF, at ¶ 56). Luzzo addressed these
concerns with the plaintiff, and also counseled the plaintiff
on training modules, proper training documentation, and
timely completion of tasks. (Defendants' SUF, at
¶¶ 27, 30).

At his
2011 mid-year performance review, Luzzo indicated among other
things that the plaintiff was continuing to
“lea[d]” the implementation of the software
system, and that the team was “optimistic” about
meeting an upcoming deadline despite being “behind
target dates.” Luzzo also indicated that the plaintiff
did not fully meet expectations on another particular
project. The plaintiff disputes that this is an accurate
portrayal of his performance in 2011, but admits that Luzzo
was not discriminating against him based on his age, then 53.
(Defendants' SUF, ¶¶ 33-34).

At his
2011 year-end review, the plaintiff received an overall
performance rating of “inconsistent, ” and Luzzo
identified several areas where the plaintiff had failed to
fully meet performance benchmarks. (Defendants' SUF, at
¶¶ 35-37, 39-42). These performance benchmarks
included, among others, the “implementation of the DPS
operational software, ” the ability to communicate
effectively, and “DPS lean document processing
implementation.” (Defendants' SUF, at Ex. 12B).

3.
2012

In
2012, the plaintiff received a poor mid-year performance
review. More particularly, the plaintiff received a
performance rating of “did not fully meet
expectations” in several areas, including in the areas
of “improving customer experience” and
“delivering process excellence.” (Defendants'
SUF, at ¶ 44). Luzzo also reduced the plaintiff's
DPS-related tasks because the plaintiff was continuing to
struggle with timely implementation of the new software
system. Luzzo subsequently reassigned those tasks to another
DPS employee. (Defendants' SUF, at ¶¶ 45-47).

On or
about May 24, 2012, Fidelity hired Burke as a “senior
director.” (Defendants' SUF, at ¶ 55;
Plaintiff's SUF, at ¶ 69). Burke was born in 1957
and is approximately 11 months older than the plaintiff.
(Defendants' SUF, at ¶ 59; Plaintiff's SUF, at
¶ 74). Burke reported directly to Luzzo and supervised
approximately 30 employees, including the plaintiff.
(Defendants' SUF, at ¶ 55). As the plaintiff's
supervisor, Burke was primarily responsible for evaluating
the plaintiff's performance, and for providing
performance related guidance and support. (Defendants'
SUF, at ¶ 84).

On
October 31, 2012, Burke met with the plaintiff to discuss
concerns he had with the plaintiff's performance.
(Defendants' SUF, at ¶ 85). Burke identified a need
for “drastic improvement” in several areas,
including in the areas of “leadership project
execution, ” “working well with others, ”
and “communication.” (Defendants' SUF, at
¶ 87).

According
to the plaintiff, Burke, at various times during the year,
made age-related remarks directly to the plaintiff or in the
plaintiff's presence. First, at some point between May
and October of 2012, Burke began to come into the office
where Coogan and a colleague named Zarrella worked and,
referring to the smell of the garbage room located in close
proximity to the plaintiff's office, would say, “It
smells like two old men in here.” (Defendants' SUF,
at ¶¶ 192-93; Plaintiff's SUF, at ¶ 87).
Second, Burke at some point during the summer of 2012 told
the plaintiff that he thought the plaintiff's team was
“old” and asked the plaintiff about the ages of
the employees who directly reported to him, and how long each
had worked at Fidelity. (Defendants' SUF, at ¶ 194;
Plaintiff's SUF, at ¶ 78). Upon learning the ages of
the plaintiff's staff, Burke allegedly responded that
“we need to be younger.” (Defendants' SUF, at
¶ 194; Plaintiff's SUF, at ¶ 81). On another
occasion, when Burke learned that a particular employee was
thinking about leaving Fidelity, he said “we can't
lose him, he's our youngest employee, ” and he
subsequently gave the employee a “substantial off-cycle
raise.” (Defendants' SUF, at ¶ 195;
Plaintiff's SUF, at ¶ 88). Burke denies having made
any of these comments. (Defendants' SUF, at Ex. 4).

4.
The December 2012 Final Written Warning

In or
around December 2012, Burke met with the plaintiff to discuss
a recent customer complaint regarding an improperly sized
document.[1] (Defendants' SUF, at ¶ 92).
Although the plaintiff denied any knowledge of the matter,
Burke and Luzzo issued the plaintiff a final written warning
on December 12, 2012. (Defendants' SUF, at ¶¶
92, 105; Plaintiff's SUF, at ¶ 110). The final
written warning stated in part that “[Burke and the
plaintiff] have discussed [the plaintiff's] overall
performance on multiple occasions over the past three months,
” and the discussions “focused on [the
plaintiff's] lack of follow-through, [the
plaintiff's] inability to understand and solve complex
business problems and an unwillingness to communicate
problems and issues to [the plaintiff's]
superiors.” (Defendants' SUF, at ¶ 108). The
written warning also identified several incidents of
misconduct where the plaintiff “instructed associates
to ship inferior product to show (the business partner) it
was wrong.” (Defendants' SUF, at ¶ 111).

Burke
placed the plaintiff on probation for 90 days.
(Plaintiff's SUF, at ¶ 111). The plaintiff was
subject to dismissal during the probationary period unless
his job performance and any identified areas of concern
improved. (Defendants' SUF, at ¶¶ 107, 116;
Plaintiff's SUF, at ¶ 111). Burke continued to meet
with the plaintiff during this time to discuss work
performance issues and opportunities for improvement.
(Defendants' SUF, at ¶ 127).

On
December 24, 2012, the plaintiff contacted a human resources
employee to express his surprise at having received a final
written warning. (Defendants' SUF, at ¶ 133). During
this conversation, the plaintiff did not express any belief
or concerns that he was being discriminated against on the
basis of his age. (Id.).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;5.
The December ...

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